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2000-273 ORDINANCE NO ~000 -a~ ~ AN ORDINANCE AUTHORIZiNG THE CITY MANAGER TO ENTER INTO A PROFESSIONAL SERVICES AGREEMENT WITH DIVERSIFIED UTILITY CONSULTANTS, INC TO PROVIDE TESTIMONY AS EXPERT WITNESSES AND RELATED CONSULTING SERVICES IN THE CITY OF DENTON VS TEXAS UTILITIES COMPANY, ET AL, LITIGATION, AUTHORIZING THE FUNDS THEREFORE, PROVIDING RETROACTIVE EFFECT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, D~verslfied Utility Consultants, Inc (DUCI) performed audits for the c~ty on TXU Gas and Electric which resulted ~n a finding of significant dehnquent franchise fees, and WHEREAS, based ~n part on DUCI's findings, the mty has filed ht~gatmn enhtled C~ty of Denton vs Texas Utd~t~es Company, et al, ~n an attempt to collect dehnquent franchise fees, and WHEREAS, through the work on the audit and through a separate contract w~th the City to provide consulting services for development of a new electric service rate design for Denton Mummpal Electric DUCI has demonstrated the competence and quahficatlons to perform these professional services, and WHEREAS, the fees under the proposed contract are fmr and reasonable and are consistent w~th and not h~gher than the recommended practices and fees pubhshed by the professional assomatmns apphcable to DUCI's profession and such fees do not exceed the maximum prowded by law, and WHEREAS, whereas the City Councd deems ~t the pubhc tnterest that the City enter tnto a professional serwces contract with DUCI to prowde lmgat~on support servmes, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the C~ty Manager ~s hereby authorized to enter ~nto a Professional Servmes Agreement w~th D~verslfied Utd~ty Consultants, Inc, substantially ~n the form of the Professional Services Agreement attached, which ~s ~ncorporated herewith by reference, to prowde expert testimony and other ht~gat~on support servmes ~n the ht~gat~on styled C~ty of Denton vs Texas Utilities Company, et al SECTION 2 That the C~ty Manager ~s hereby authorized to make the expenditures and take the actions set forth in the attached Professional Serwces Agreement SECTION 3 That any services previously performed by DUCI ~n support of th~s htlgat~on are hereby ratified and retroactively approved fi.om and after June 1, 2000 SECTION 4 Th~s ordinance shall become effective ~mmed~ately upon ~t's passage and approval PASSED AND APPROVED this the /f, frt day of ~ ,2000 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY Page 2 2000, by ~d b~c~ the C~ o~ D~ton, Texas, a Texas mumc~pal c~oratlon, with pnnc~pal o~ce at 21~ East McKm~ey S~eet, Dentes, Denton Co~uty. Tex~ 76201, h~gma~cr called "O~ER" ~d D~verslficd UtlhW Consultants, lnc, w~th its co.orate office at 12113 Roxte Drive, Suite 110~ Austin, Tcx~ 78729, herema~er called "CONS~TANT," acting here~n, by ~d tMou~ thmr duly authorized r~s~mat~ves WI~SSETH, that tn consideration of ~¢ covenants and agreem~n~ hereto contmned, the pa~os he.to do mutually agree ~ follows ARTICL~ 1, EMPLOYMenT OF CONSULTANT The O~ER h~by con.acts wl~ thc CONSULTS, as an indep~dent con.actor, and the CONSULTANT hereby agrees to perfo~ the seduces hereto m co.etlon wt~ the Pro~t ~ s~t~ ~n the sections to follow, w~th d~hg~ce ~d ~n accoM~ce wl~ thc M~cst professlonal stand.ds custom~tly obtmn~ for such sem~ces m ~ofcsstonal s~lces set out hcre~n are m co~ect~on with the following described project ~¢ P~ject shall ~nclude, without hnutat~on, provMmg exper w~tncss testimony ~d relat~ litlga~on supper seduces, along w~th any oth~ som~cos wMch would b~ necess~ to perfo~ such hRgatton supper sem~es m the case of City of Denton va Tex~ Utilities Company, et al, Cause No 2000-60109-393 m ~e 393~d Judicial D~smct CouR of D~ton Coumy, Tex~ ARTICLE Z SCOPE OF SERVICES Thc CONS~TANT shall pcrfo~ the following se~lces in a profession~ m~ A The CONSULTANT shall perfo~ all those se~ces as ncccss~ and as descnb~ m the CONS~T~'s letter proposal dated July 27, 2000, w~th CONSULTANT's cost proposal, which ~$ attached hel~o ~ Exh~be "A", to provid~ expm wtmgss testimony ~d other hhgat~on su~oR s~lces to htxgat~on coun~l m the c~e of C~W of Denton vs Tex~ Ut~ht~es Company, et al, Cause No 2000-60109-393 in ~e 393r~ D:stn~ Cou~ of Denton CounW, Texas Such s~wces shall include, w~thout hm~tat~on, prowdmg testimony as exper witness to supper th~ findings of consultant's audits ofTXU O~ and FRONr DENTON CITY ATTORNE¥ FAN H0 ~ 9483827923 08-87-80 83~46P P 84 Electric including any rcv~s~ous to these findings teat result from documents produced or evtdence recetved as a result of the above mentioned llttgatlon B CONSULTANT shall cooperate fully with the law firm of Stra~burgcr and Pnee and Bucek and Frank and the City Attorney m performing these semces C CONSULTANT shall petfon~a all those ~erv~ces set £onh in lnd~wdual task orders, if any, which shall be attached to th~a Agreement and made a part h~eof for all purposes as separate agreements D If there is any conflict between the terms of t~s Agreement and the exhibits attached to t~s Agreement, the terms and conditions of thts Agreement will control over the terms arid condlttons of the attached exhll01ts or task orders ADDITIONAL SERVICES Addltmnal servtces to be performed by the CONSULTANT, if authorized by the OWNER., whtch are not included m the above-described Basic Semces, are d~scnbed as follows A Any other addlttonat services specifically requested by the OWNER not included w~thm the scope o£thls Agreemetlt a~d its exhibits PERIOD OF SERVICE Th~s Agreement shall become effechve upon execution of this Agreement by the OWNER mid the CONSULTANT and upon issue o£ a notice to proceed by the OWNEK, and shall remmn m force for the per[od which may reasonably be reqmmd for the completion of the ~oject, mcludtng Addmonal Services, if any, and any required extenstons approved by the OWNER Thts Agreement may be sooner terminated m accordance w~th the prows~ons hereof' Time ts of the essence ~n this Agreement The CONSULTANT shall make all reasonable efforts to complete the services set forth hereto as expeditiously as posstbl¢ and to me~ thc schedule estabhsl0,ed by the OWNE~, in Exhibit "A", actm$ thxough its attorneys COMPENSATION A COMPENSATION TEP, iViS 1 "Subcontract ]~xpense" is defined as expenses Incurred by the CONSULTANT in employment of others m outside firms for services Page 2 FRONt DENTON CITV flTTORNEV FflX NO { 940582?923 08-S7-00 03m46P P 05 2 "Dutect Non-Labor Expense' ts defined a~ that expense for any assignment recurred by the CONSULTANT for supphes, transportation and equipment, travel, cornmulllcattorls, subsistence, and lodging away from home, and similar incidental expenses m connection with that assignment B BILLING AND PAYMENT For and tn consideration of the professional services to be pcrfornled by the CONSULTANT herein the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown m Exhibit "A'. July 27, 2000 letter from CONSULTANT to OWNER and attached manpower and cost requirements, a total fee, including relnlbursement for direct non-labor expenses and all out of pocket expenses not to exceed $75,000 00 All out of pocket expenses will be r~zrnbursed at cost, internal COplOS will be reimbursed at a rate of $10 per copy, and internal computer time will be reimbursed at the rate orS10 00 per hour Pamal payments to the CONSULTANT wtll be made on the brats of detailed monthly statotllents randered to and approved by the OWNER through its Assistant City Manager for Fiscal & Municipal $crvlces and its City Attorney or hfs designee, however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a staten'lent is re~ldered The OVv~NER may withhold the final five petx:ent (5%) of tho contract amount until compl~hon of the Project Nothing contained m this Article Shall require the OWNER to pay for any work which is ttmahsfactory, as reasonably determined by the City Manager or his designee, or which ts not subrmttod in compliance with the terms of this Agreement The OWNER, shall not be required to make any payments to the CONSULTANT when the CONSULTANT is tn d~fault under flus Agreement It ts specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require eddttmnal payments by the OWNER for any charge, expense, or reunburserncnt above thc maxtraurn not to exceed fee as stated, without first hawng obtmned written authorization from the OWNER The CONSULTANT shall not proceed to perform the services hated tn Arttcle 3 "Addmonal Services," without obtmnmg prior written anthonzatmn from thc OWIqER C ADDITIONAL SERVICES For add~honal services authorized tn writing by thc OWNER in Article 3, the CONSULTANT shall be pald based on the Schedule of Charges at an hourly rate shown ~n Exhibit "A' Payments for additional s~rvices shall b~ due and payable upon subm~ss,on by thc CONSULTANT, and shall be in accordance w~th subsection B hereof, Statomonts shall not be submitted more frequently than monthly D PAYMENT If the OWNER finis to make payments due the CONSULTANT for services and expenses w~thm 60 days after receipt of the CONSULTANT's undisputed statement thcrco£, thc amounts duc the CONSULTANT will be increased by thc rate of Page 3 FROM: DENTON OITV flTTORHE¥ FRX NO : 948382?925 08-0?-00 85 47P P 06 one pem~alt (1%) p~r month from thc said sixtieth (60th) day, and, m adchtton, thc CONSULTANT may, after g[wng seven da~s' written notme to the OWNER, suspend s,mces unde~ thts Agxeement untd the CONSULTANT has been pad tn full all amounts due for services, expenses, and charscs, provided, however, notlung herein shall requtre the OWNER to pay the late charge of one pement (1%) set forth h~rem if the OWNER reasonably determines that the work ~s unsat~s£actory, m accordance with thts Amcle 5, '"Colnp~llSl~,tlOIl" ARTICLE 6 OBSERVATION AND REVIEW OF TIlE WORK The CONSULTANT wall ex~rclse reasonable care and due d~hgence in dlscovenng and promptly reporting to the eVeNER any defects or deficiencies tn the work of the CONSLrLTANT or any subcontractors or subconsultants ARTICLE 7 OWNERSHIP OF DOCUMENTS All documents prepared or furmshed by the CONSULTANT (and CONSULTANT's subcontractors or subconsultants) pursuant to thts Agreement are mstmmenm of service, and shall become the property of the OWNER upon the tennmaUon of this Agre,ment The CONSULTANT is entitled to retain copies of all such documents The documents preparexl and furnished by the CONSULTANT are mtended only to be applicable to th~s Prooect, and OWNER's use of these doeumants m other projects shall be at OWNER's sole nsk and expense In the event the OWNER uses any of the mformatmn or materials developed pursuant to tbas Agreement in another project or for other purposes than specffied hereto, CONSULTANT ls releasexl from any and all habihty r~latmg to their use m that project INDEPENDENT CONTRACTOR CONSULTAN I shall prowde services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or clam any nght arising from employee status ARTICLE 9 INDEMNITY AGREEMENT The CONSULTANT shall and hereby agrees to mdemmfy and save and hold harmless thc OVv2qER and ~ts officers, agents, and employees from and against any and all habihty, claims, demands, damages, losses, and expenses, including, but not bruited to court costs and reasonable attorney fees recurred by the OWNER, and including, w~thout hm~tat~on damages for bodily and p~rsonal mjury, death and property damage, resulting from the neghgent acts or omtssmns of the CONSULTANT or ~ts officers, shareholders, agents, or employees m the execution, operatmn, or performance of thts Agreement Page 4 Nothing in th~s Agreement shall be construed to create a habfl~ty to any person who is not a paI~y to this Agreement. and nothing herein shall wave any of the parties' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to this Agreement, lncludml/ the defense of l/ovemmental immunity, wtuch defenses are hereby expressly reserved ARTICLE 10 INSURANCE Dunng the performance of the services under this Agreement, CONSULTANT shall maintain the followmt msurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating; with Best Rate Carners of at least an A- or above A Comprehensive General Llablhty Insurance w~t}~ bodily injury hm~ts of not less than $500,000 for each occurrence and not less than $$00,000 in the aggrel/ate, and with property daraase limits of not less than $100,000 for each occ~ce and not less than $100,000 in the B Automobile L~abfl~ty Insurance with bodily injury limits of not less than $500.000 for each person and not less than $500,000 for each accident, and with property damage limits of riot less than $100,000 for each accident C Worker's Compensation Insurance in accordance with statutory reqmrements, and Employers' Liability Insurance with halts of not less than $100,000 for each accident D Professional Liability Insurance with limits of not less than $I,000,000 annual aggregate E The CONSULTANT shall fun'ash insurance certificates or insurance policies at the OWNER's request to evidence such coverages The insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such Insurance shall lief be canceled or modified wlthollt 30 days' prior written notice to OWNER and CONSULTANT In such event, the CONSULTANT shall, poor to the effe/:tlve date oflhe change or cancellation, serve substitute pohcles furlllshmg the same coverage ARTICLE ARBITRATION Ai~D ALTERNATE DIS PUTE RE$OLI. Y[IOI~ The part,es may agree to settle any d~sputes under this Agreement by submlttmg tho dispute to arbitration or other means of alternate dispute resolution, such as mediation No arbitration or alternate d~spute resolution anslag out of or relating to th~s Agreement, mvolvmg one party's disal/reement, may include the otho~ party to the disagreement without the other's approval Page 5 TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either par~y may terminate by giving 30 days' advance written notice lo the other party B This Agreement may be termrnated in whole or m part m the event of either par~y substantially fmhng to fulfill its obhgattons under this Agreement No such termination will be affected unless the other party as given (1) written notice (delivered by certified mml, return receipt requested) of mtent to terminate and setting forth the reasons specifying the non-performance, and not less than 30 calendar days to cure the failure, and (2) an opportunity for consultation with the termmat,ng party prior to termination C If the Agreement is terminated prier to completion of the ~erwce~ to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER wnhm 30 days after the date of termination The OWNER shall pay CONSULTANT for all senaces properly rendered and satisfactorily performed and for reimbursable expenses to termmanon incurred prior to the date of termination, tn accordance with Article 5 "Compensation" Should the OWNER subsequently contract w~th a new consultant for the continuation of services on the Pwjeet, CONSULTANT shall cooperate m providing information The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termmahon, but may mmntam copies of such documents for its use RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responstbfllW and habfllty of the CONSULTANT, ~ts employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work, nor shall such approval be deemed to be an assttmptlon of such responsibility by the OWNER for any defect tn the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants NOTICES Ali not, cos, col~'nunicatlons, and reports r~qmred or permitted under tbs Agreemem shall be personally dchvered or marled to the respective p~r~¢s by depos~trng same m the Umted States marl to the address shown below, certified m/al, return receipt requested, unless otherwts¢ specified hereto Mmled notices shall be deemed commumcated as of three days' mmhng Page 6 To CONSULTANT To OWNER 3'ack Poua City of D~mton Diversified Utahty Consultants, Inc Herbert L Prouty, City Attorney 12113 Roxle Drive, Suite 110 215 East McKmney Austin, Texas 78729 Denton, Texas 76201 All not, ecs shall be deemed effective upon receipt by the party to whom such notice is g~ven, or w~thm three days' mailing ARTICLE 15 ENTIRE AGREEMENT This Agreement, conmsnn$ of ten pages and two exhibits, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms o£ their agreements, and supersedes all prior contemporaneous offers, prormses, representanons, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof ARTICLE 16 SEVERABILITY If any provlmon of this Agreement Is found or deemed by a court of competent jurisdiction to be mvahd or unanforceabl¢, it shall be considered severable from the remainder of this Agr~ment and shall not cause the remainder to be invalid or unenforceable In such event, the patties shall r~form this Agr~mem to replace such stricken provision with a vahd and enforceable provmon which comes as close as possible to expressing the retention of the stricken provision ARTICLE 17 COMPLIANCE WITH LAWS The CONSULTANT shall comply w~th all federal, state, and local laws, ml~s, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be axnended ARTICLE 18 DISCRIMINATION PROItIBITED in performl~ the selx, lces required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, rchgion, sex, national ongm or ancestry, age, or physical hun&cap Page 7 b.RTICLE 19 PERSONNEL A The CONSULTANT .:presents that it has or will secure, at tis own expense, all persollnel required to perform all the services reqmred under this Agreement Such pe~solulel shall not be clllployees or o~cers o£, el have any contractual rclatwns w~th th~ OWNER CONSULTANT shall inform the OWNER. of any conflict of lmerest or potential conflict of interest that may arise dunng the tarn of this Agreement B All services required hereunder will be performed by the CONSULTANT or under lis supervision All personnel engaged tn work shall be qualified, and shall be authorized and penmlted under slate and local laws to perform such services ARTICLE 20 ASSIGNABILITY The CONSULTANT shall not assign any interest m this Agreement, and shall not transfer any interest tn this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER MODIFICATION Ho waiver or itlodl~catloll of this Agreement or of any covenant, condition, or limitation herein continued shall be valid unless in writing and duly executed by the party to be charged thorcwith, and no cvidcnc¢ of any waiver or modification shall bc offercd or rccmvc(1 in cwdcncc tn ally proceeding arising between the parties hereto out of or affecting this Agreemetlt, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed, and the parties further agree that the provmons of this section will not be waived unless as set forth herein ARTICL~ 2Z CONFLICT OF INTEREST CONSULTANT covenants that neither ~t nor any member of ~ts firm has any interest, direct, or indirect, which would conflict in any manner or degree with the performance of services required to be performed under tb~s Agreenlent CONSULTANT further covenants that in the performance et this Agreement, no person having such interest shall be employed or appointed as a member of its firm CONSULTANT f~thcr covenants that nmther CONSULTANT nor any member of its ~rm shall perform services for or accept compensatio~ from TXU Gas or Electric or any of the defendants named m the httgation or their affiliates (iunng the term of this contract nor disclose any matter which would adversely ~rnpact owner in th~s lmgatlon, unless CONSULTANT £~rst fully discloses the matter to Owner and receives Owner's permission to undertake such services or accept such compensation Page 8 ARTICLE 23 MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement A - Letter of July 27, 2000, with CONSULTANT's cost proposal B CONSULTANT agrees that OWNER shall, untd the expwatlon of three years after the final payment under this Agreement, have access to and the right to examine any dxrectly pertinent books, documents, papers, and records of thc CONSULTANT involving transactions relating to thxs Agreement CONSULTANT agrees that OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space m order to conduct audits m ¢omphanee with this section OWNER shall give CONSULTANT reasonable advance notme of intended audits C Venue of ally salt or cause of actmn under this Agreement shall lie exclusively m Denton County, Texas This Agreement shall be construed in accordance with thc laws of the State of Texas D For the purpose of this A~goement, the key persons who will perform most of the work hereunder shall be Jacob Peas, Dan Lawton, and Sara Coleman However, nothing h~tem shall limit CONSULTANT from using other qualified and competent members of its firm to perform the services reqmred herein E CONSULTANT shall commence, carry on, and complete any and all projects with all apphoable dispatch In a sound, economical, and efficient manner and m accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that tho work involved is properly coordinated with related work being earned on by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANI's disposal all available mfol matron pertmeot to tile P~ eject, including previous reports, any other data relative to the Projech and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and pnvat¢ property as requlred for the CONSULTANT to perform services under this Agreement G The capUons of th~s Agreement are for reformational purposes only, and shall not in any way affe~t the subatm~tive terms or conditions oft[us Agreemem IN WITNESS HEREOF, the City of Denton, Texas has caused th~s Agreement to be executed by its duly authorized City Manager, and CONSULTANT has execute&this Agreement officer on this the 7''p day of c~/~- , through Its duly authorized undc'l~lgncd Page 9 CITY OF DENTON, TEXAS ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY / DIVERSIFIED UTILITY CONSULTANTS, [NC J K~POUS, PRINCIPAL WITNESS Page 10